Contracts of Employment

LAW ASSIGNMENT OCTOBER 24TH 2011Outline any facts of the case in which there are problems/issues. Tom has been a salaried employee under a Contract of Service. Tom wishes to change the basis of his working relationship with the firm. He wishes to continue to work for the firm but under a Contract for Services under which he will be employed as a self employed consultant. A major problem is the firm also wishes to introduce a clause into Tom’s Contract to prevent him from acting as a consultant to any other firm of civil engineering. The firm wishes to include a term in the Contract with Tom that will rquire him to obey all reasonable orders. He has not shared in the profits of the firm. The main problem is determining is Tom an employee or independent contractor. Decide the key Principals of Law Involved

The key principals of law involved is determining whether Tom is employed under a Contract of Service or under a Contract for Services. If Tom is an employee of Celtic Construction he will be under a Contract of Service. If Tom is not an employee of Celtic Construction Ltd he is under an independent contractor, which independent contractors are under a contract for services. There are important reasons for the distinction between an employee and independent contractor as many consequences must follow: 1. An employer is vicariously liable for the torts of an employee but not those of an independent contractor. 2. The employer owes a care of duty to an employee but not to an independent contractor. 3. Employees pay Income Tax under tax Schedule E, with deduction of Tax and PRSI at source, whereas the Independent Contractor is assessed under Tax Schedule D and makes his own Return. 4. Statutory rights are only given to employees e.g. only employees with a Contract of Service may claim under the Unfair Dismissals Act, 1977-2007, the Redundancy Payments Act 1967-2007. 5. When a Company is in receivership or liquidation, debts to employees are treated as preferential debts under Company Law and will be paid before some other debts (In re Sunday Tribune (In Liquidation) 1984 IRE. 6. In some circumstances only those under Contracts of Service are represented by Trade Unions.

Compare the Facts of the Case with Decided Cases; cite Relevant Case and Statue Law? A similar case to this is the Mahon v Henry Denny and Sons (Ireland) Ltd 1997 IRE. This case was to figure out was Mahon employed under a Contract of Service or under a Contract for Services. The Court made the distinction quite clear that Mahon was actually an employee rather than an independent contractor, even though she had signed a Contract previously. At the Supreme Court the Judge highlighted a number of important things: * The worker did not provide any independent input into her job. * The worker did not provide any equipment or investment. * The worker could not alter her level of earnings through improving efficiency of management. This case is similar to Tom and Celtic Construction and Co Ltd in that Tom did not provide his own equipment for doing the job. The firm still continued to provide him with an office computer to assist him at his work. Tom also could not alter his earnings like Mahon as the firm wished to introduce a clause unto Tom’s contract to prevent him from acting as a consultant to any other firm of civil engineering. In the Mahon v Henry Denny & Sons case the reality test was used as all the factors had to be considered in this case. Reach a Conclusion/Solution to the Problems /Issues

In this particular case I think a reality test would have to be done. In the reality test all factors must be considered equally and an overview must be taken. There are no particular list of factors that the Court must consider. However here are a list of factors that the Court may look at relating to Tom working for Celtic Construction and Co Ltd. * Method or payment of wages.

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...Principles of Commercial Law in Ireland 2007-2008
Dr Olivia Smith
Employment Law: Identifying the Contract of Employment
Reading: M. Forde, Employment Law 2nd ed. (Dublin: Roundhall Sweet and Maxwell, 2001) Chapter 2.
History
▪ the move from status to contract. Query whether a move back to status?
The protection afforded to individual employees under Irish employment law depends on a legal paradigm whereby the rights provided for are implied into the terms of the contract between the employer and the employee. Thus the starting point before any examination of these protections must be a consideration of the employmentcontract itself. While there is invariably an exchange of labour for capital in the arrangements made by the parties, we must identify the distinction between a contract of services and a contract for services in order to ascertain whether the relationship between the alleged employee and employer is in fact a contract of service and thus within the protection of the legislation.
The statutory definition of employee is based on the common law contract of service. An employee will be defined in such terms under the general run of employment legislation.
The criteria for distinguishing between a contract of service and a...

...Essentialia
The contract of employment is an agreement between two parties in terms of which one party (Mr. Phage) places his labour potential at the disposal and under the control of the other party (Lifeline services), in exchange for some form of remuneration.
From this definition, it is clear that the essentialia of a contract of employment are
1. Work and
2. Remuneration.
This contract does not meet the requirement for work because even though an ambiguous job title of ‘General Worker’ has been given, no type of work or job description has been specified. The contract states that the employee will perform ‘any and all duties’ required by the employer without specifying a particular field or area of expertise with which that relates to.
As a result that no specified tasks have been assigned:
a) It is impossible for the employee to agree to an appropriate remuneration.
b) It is impossible to identify under what circumstances disciplinary action may be taken in areas such as under / non-performance.
The contract does however meet the requirements for remuneration. The amount is certain and fixed at the sum of R3000 which is paid monthly in Cash.
Control Test
An employmentcontract states that an employee is subject to the authority and supervision (control) of the employer. However, the amount of control an employer can...

...framework that is provided for the employmentcontract by
1. identifying the tests the courts apply to determine who is an employee.
2. explaining how these tests have been defined or modified in Pointe-Claire (City of) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015.
3. summarizing the most important principles of contract law governing the formation of an employmentcontract.
Employmentcontracts are encased by many legal frameworks which significantly influence the how the contracts are interpreted and enforced. These legal frameworks include tests used by courts to determine who is an employee and how these tests were altered by the Pointe-Claire v. Quebec case trialed by the Supreme Court of Canada, and aspects of contract law which govern the establishment of employmentcontracts.
It is critical to determine who is an employee and who is an independent contractor because not only do most protective employment statutes pertain only to employmentcontracts (England, 2008, p. 16), but an employee has certain obligations under various legislation including the Income Tax Act, the Employment Insurance Act, the Canada Pension Plan Act, the Employment Standards Act, the Workers Compensation Act, and the Labour Relations Code 9or the...

...reflect current employment law. Identify 3 different sources of information you could use to enable you to do this.
To update the staff handbook to reflect current employment law you could get your information from- other colleagues in your workplace, websites that give the current employment law (direct gov), books on current employment laws and regulations.
Aii a- list 3 aspects of employment covered by law.
3 aspects of employment covered by law are- pay (wages), working hours and holiday entitlement.
Aii b- list 3 main features of current employment legislations.
3 features of current employment legislations are the health and safety at work act 1974, employment rights act 1996 and the equality act 2010.
Aii- briefly outline why employment law exists.
The employment law exists to protect the rights of an employee, to support and protect the employer, to make sure that there is fair access to benefits and that people don’t work below the minimum wage. Also to provide a fair and safe work environment for everyone.
Bi- describe the terms and conditions of your employment as set out in your contract of employment or employment agreement.
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...
On 13 March 2008 Pat Harrison asked Sadia Warsame to write reports on the Contract of Employments. This report will be used to help the readers to gain more Knowledge and Information.
2.0 Procedure
Information was obtained by
2.1 Visiting www.acas.org.uk .
2.2 Reading a book called Glossary of Employment Terms by Peter Chandler.
2.3 At work from colleuages.
3.0 Findings
3.1 Contract of Employment.
Contract of Employment is a contract between an employer and employee, established after an offer of employment is made by the employer and accepted by the employee. Contracts of employment may be expressed orally or in writing and they can be open-ended or for fixed-time or fixed-purpose. The terms of contract of employment may be oral, written, implied or a mixture of all three. If an employee works for the employer a month or longer, The employer must give them a written statement of specified terms and conditions within two months of starting their employment with the Employer. Your contract of employment is a legally binding agreement and obliges both you and your employer to keep to the terms of employment spelled out in it. These terms can of course be changed at any time by mutual agreement....

...Contract of Employment
In this task I will be explaining how organisations obtain the cooperation of their employee. I will also provide a contract to present and explain what a contract consists of.
Contract of Employment
A contract of employment is an agreement between an employer and employee and is the basis of the employment relationship, it a written contract which both the employee and employer have to abide by, however not all contracts of employment have to be written, they can also be oral but this is not often. A contract 'starts' as soon as an offer of employment is accepted. Starting work proves that you accept the terms and conditions offered by the employer. The main elements of a contract are pay, holiday, working hours, duties/responsibilities, Sickness Absence etc.
Pay (salary)
In this part of the contract the employer will state the salary that will be paid to the employee. The salary will be abided by the minimum wages and in the case of a teacher; the salary will be in accordance to the School Teachers’ Pay and Conditions Document. Payments are paid monthly on an equal basis unless stated otherwise. As stated in the contract employees will be paid depending on the hours of work they have done also the...

...EMPLOYMENTCONTRACTS
type of contract
definition
permanent contract
An employee who has been hired and paid directly by that employer for a position without a predetermined time limit.
contract with employer
period
benefits
yes
without time limit
all from employer
yes
time limit: date
rarely, in NL all except
pension in some cases
yes
time limit: date, task,
project, by law
(maternity leave f.e.)
rarely
yes
time limit
rarely
no, work agency
time limit
all from agency
In addition to their wages, they often receive benefits like subsidized health care, paid vacations,
holidays, sick time, or contributions to a retirement plan. Even when employment is "at will",
permanent employees of large companies are generally protected from abrupt job termination by
severance policies, like advance notice in case of layoffs, or formal discipline procedures. They may be
eligible to join a union, and may enjoy both social and financial benefits of their employment.
temporary contract
An employee who has been hired and paid directly by that employer for a position with a predetermined time limit.
They rarely receive benefits or the job security afforded regular staff. However in the Netherlands
employees with temporary contract do need to receive the same benefits as employees with...

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EMPLOYMENT LAW
Introduction
The aim of this Assessment is to demonstrate an understanding of employment regulation and how it is enforced. Other areas covered include; how to manage recruitment, manage issues relating to pay and working time lawfully and how to ensure that staff are treated lawfully when they at work. Finally it will cover managing performance and disciplinary matters lawfully.
Activity 1
The purpose of Employment Law is to provide legal protection to employees and employers. Employment Law is set up to ensure legal guidelines and standards are met with recruiting, working standards, pay and allowances and the disciplinary process. It is also aimed at protecting a person’s Equality and Human Rights such as discrimination against gender, disability, race, sexual orientation, religion and pregnancy.
Broadly speaking, the employment relationship is regulated by both voluntary and
legal measures. Voluntary measures comprise agreements and other decisions that
derive from collective bargaining, arbitration, conciliation, mediation, and grievance
and discipline handling. They also include voluntarily accepted standards of good
employment practice. Legal measures are European Union (EU) treaties and directives, the European Convention on Human Rights and Fundamental Freedoms 1950, British statute law, the common law of contract and of tort, case law, statutory...